Citation Nr: 9924837
Decision Date: 08/31/99 Archive Date: 09/08/99
DOCKET NO. 96-28 296 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to an evaluation in excess of 10 percent for
bilateral defective hearing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Wm. Thompson, Counsel
INTRODUCTION
The veteran had active military service from August 1948 to
August 1952. His awards and decorations included the Korean
Service Medal, with 3 devices (connoting campaigns).
This appeal arose from the veteran's August 1996 notice of
disagreement (NOD), and January 1996 substantive appeal.
There were complaints of and findings of right deafness in
service. Following VA examination completed in December
1952, a rating action later in December, in addition to
another determination, granted service connection for partial
deafness, right 2/20, left 20/20, and assigned a 10 percent
evaluation under Code 6258. Notice to the veteran in January
1953 showed that his award was for a combined rating of
"deafness" and sinus condition.
The RO, in the May 1995 rating action described the service
connected hearing disability as defective hearing
bilaterally, predominately in the right ear. However the
issue shown in the rating action, and November 1995 statement
of the case (SOC), was increased evaluation for hearing loss
in the right ear. The June 1996 and January 1999
supplemental statements of the case (SSOC) showed the issue
to be increased evaluation for service connected bilateral
hearing loss. Based on the ambiguous notice of award to the
veteran in January 1953, and the May 1995 rating action
characterization of the service-connected disability as
bilateral defective hearing, the Board will treat the issue
as shown above.
FINDINGS OF FACT
1. The veteran was exposed to acoustic trauma in service,
and experienced right ear deafness in service.
2. The current tinnitus is related to his active military
service.
3. The veteran has level II hearing in the left ear, and
level XI in the right ear.
CONCLUSION OF LAW
1. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110,
5107(a)(b) (West 1991 & Supp.1999); 38 C.F.R. § 3.303 (1998).
2. An increased evaluation for bilateral hearing loss is not
warranted. 38 U.S.C.A. § 1155, 5107(a) (West 1991 & Supp.
1999); 38 C.F.R. § 4.85 Diagnostic Code 6101 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Tinnitus
The veteran has stated that he was exposed to acoustic trauma
in service, and in hearing testimony in May 1996 he recounted
episodes of ringing in the ears in service, and stated that
it persisted after service. On the basis of the current case
law, which requires that this evidence be presumed to be true
for the limited purpose of establishing a well-grounded
claim, his claim for service connection for tinnitus must be
presumed to be plausible, and thus well grounded. King v.
Brown, 5 Vet. App. 19 (1993); Murphy v. Derwinski, 1 Vet.
App. 78, 81 (1990).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1998).
In determining whether an injury or disease was incurred in
or aggravated in service, the evidence in support of the
claim is evaluated based on the places, types and
circumstances of service as shown by the service records, the
official history of each organization in which the veteran
served, the veteran's service medical records, and all
pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b)
(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303(a), 3.304
(1998).
Factual Background
Sick call treatment records variously dated in April 1952,
noted deafness in the left ear beginning a year before, and
conduction type on the right. A July 1952 service medical
record entry noted that the veteran related loss of hearing
due to gunfire in Korea. Audiometer testing on separation
examination in August 1952 showed significant hearing loss in
the right ear, and elevated threshold levels in the left ear.
VA examination in October 1952 noted an old scar on the left
eardrum, and decreased hearing acuity in the right ear. A
rating action in December 1952 granted service connection for
partial deafness, rated 10 percent.
When the veteran was hospitalized at a VA medical facility in
April 1955, for a condition not at issue, information
recorded for clinical purposes was to the effect that he had
hearing difficulty in the right ear following a concussion.
The veteran filed a claim for service connection for tinnitus
secondary to his hearing loss, noting a recent change in the
law.
In August 1994 the veteran filed a claim to include ringing
in the ears. A VA audiology evaluation in August 1994 noted
complaints of severe tinnitus for 20 years, severe to
profound mixed hearing loss in the right ear, and mild to
moderately severe sensorineural hearing loss in the left ear.
An October 1994 clinic record also noted history of tinnitus.
VA ear, nose, and throat examination in April 1995 resulted
in a diagnosis of profound sensorineural hearing loss in the
right ear, high frequency sensorineural hearing loss in the
left ear, and constant tinnitus in the ears. The audiology
history recorded in April 1995 noted exposure to weapons fire
during most of the veteran's 4 years in the Marines. It was
recorded that he noticed decreased hearing and increased
tinnitus since the late "40's".
The veteran, in hearing testimony in May 1996 reported that
the ringing in the ears started in boot camp, when qualifying
on the rifle range. He then experienced it on his first trip
to Korea, in a combat zone when he woke up with a strong head
cold and was deaf for almost a week. He was sent back into
combat for 10 days with constant firing and constant ringing
in the ears. His last year in service he was a military
policeman, and duty included training on the pistol range,
Transcript (T.) pp. 2 and 3. He reported that as his hearing
got worse, he was told that the tinnitus was the ringing and
he would have his award upgraded, and the veteran thought the
ringing just went with the hearing loss. He was told it was
a separate problem, and that was about 15 or 16 years ago,
when he filed a claim for tinnitus. He had the ringing and
buzzing in service and it never went away, T. p. 4.
Analysis
The veteran reports combat in service, with exposure to
gunfire and other loud noises, and the RO has not identified
any evidence to the contrary. The Korean Service Medal
places the veteran in Korea, although it does not establish
his participation in combat. He was found to have defective
hearing in service, and during service he related the hearing
loss to gunfire in Korea. He reports tinnitus in service and
thereafter. The Board finds that tinnitus is a type of
disorder, like flat feet, that a lay party is competent to
establish and to provide evidence of a continuity of
symptomatology with his evidentiary assertions. See Savage
v. Gober, 10 Vet. App. 488, 495-97 (1997). The veteran's
assertions are further supported by the fact that there is a
diagnosis of bilateral sensorineural hearing loss with
hearing loss found in service, and the contemporaneous
statement about gun fire in Korea. Therefore, the Board
concludes that the preponderance of the evidence supports the
veteran's claim.
Increased Rating Hearing Loss
An allegation of increased disability establishes a well-
grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629
(1992); See also Jones v. Brown, 7 Vet. App. 134 (1994).
When entitlement to compensation has already been established
and an increase in the disability rating is at issue, the
present level of disability is of primary concern. Although
a rating specialist is directed to review the recorded
history of a disability in order to make a more accurate
evaluation, see 38 C.F.R. § 4.2, the regulations do not give
past medical reports precedence over current findings.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Evaluations of bilateral defective hearing range from
noncompensable to 100 per cent based on the organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests, together with the
average hearing threshold level as measured by pure tone
audiometry tests in the frequencies 1,000, 2,000, 3,000 and
4,000 cycles per second, reported as a result of VA regional
office or authorized audiology clinic examinations. To
evaluate the degree of disability from bilateral service-
connected defective hearing, the revised rating schedule
established 11 auditory acuity levels designated from level 1
for essentially normal acuity, through level XI for profound
deafness. A noncompensable evaluation is assigned if hearing
in the better ear is at level I and the other ear is at level
IX or better; if the better ear is at level II and the other
ear is at level IV or better; or if both ears are at level
III. A 10 per cent evaluation is assigned if the better ear
is at level I and the other ear is at level X or worse, or
if the better ear is at level V or worse. 38 C.F.R. § 4.85,
Tables VI, VIa*, and VII.
(a) Examinations are conducted using the controlled speech
discrimination tests together with the results of the
puretone audiometry test. The horizontal lines in table VI
represent nine categories of percent of discrimination based
on the controlled speech discrimination test. The vertical
columns in table VI represent nine categories of decibel loss
based on the puretone audiometry test. The numeric
designation of impaired efficiency (I through XI) will be
determined for each ear by intersecting the horizontal row
appropriate for the percentage of discrimination and the
vertical column appropriate to puretone decibel loss; thus
with percent of discrimination of 70 and average puretone
decibel loss of 64, the numeric designation is V for one ear.
The same procedure will be followed for the other ear.
(b) The percentage evaluation will be found from table VII by
intersecting the horizontal row appropriate for the numeric
designation for the ear having the better hearing and the
vertical column appropriate to the numeric designation for
the ear having the poorer hearing. 38 C.F.R. § 4.85 (as in
effect prior to June 10, 1999).
The evaluations derived from this schedule are intended to
make proper allowance for improvement by hearing aids.
Examination to determine this improvement is therefore
unnecessary. 38 C.F.R. § 4.86 (as in effect prior to June
10, 1999).
When claims are encountered in which the medical evidence
necessary to establish service-connection for hearing loss
predates the use of puretone audiometry and controlled
speech, service-connection will be determined under the
provisions of Secs. 4.85 through 4.87a of this part as in
effect on December 17, 1987. 38 C.F.R. § 4.86a (as in effect
prior to June 10, 1999)
(a) An examination for hearing impairment for VA purposes
must be conducted by a state-licensed audiologist and must
include a controlled speech discrimination test (Maryland
CNC) and a puretone audiometry test. Examinations will be
conducted without the use of hearing aids.
(b) Table VI, "Numeric Designation of Hearing Impairment
Based on Puretone Threshold Average and Speech
Discrimination," is used to determine a Roman numeral
designation (I through XI) for hearing impairment based on a
combination of the percent of speech discrimination
(horizontal rows) and the puretone threshold average
(vertical columns). The Roman numeral designation is located
at the point where the percentage of speech discrimination
and puretone threshold average intersect.
(c) Table VIa, "Numeric Designation of Hearing Impairment
Based Only on Puretone Threshold Average," is used to
determine a Roman numeral designation (I through XI) for
hearing impairment based only on the puretone threshold
average. Table VIa will be used when the examiner certifies
that use of the speech discrimination test is not appropriate
because of language difficulties, inconsistent speech
discrimination scores, etc., or when indicated under the
provisions of Sec. 4.86.
(d) "Puretone threshold average," as used in Tables VI and
VIa, is the sum of the puretone thresholds at 1000, 2000,
3000 and 4000 Hertz, divided by four. This average is used
in all cases (including those in Sec. 4.86) to determine the
Roman numeral designation for hearing impairment from Table
VI or VIa.
(e) Table VII, "Percentage Evaluations for Hearing
Impairment," is used to determine the percentage evaluation
by combining the Roman numeral designations for hearing
impairment of each ear. The horizontal rows represent the
ear having the better hearing and the vertical columns the
ear having the poorer hearing. The percentage evaluation is
located at the point where the row and column intersect.
(f) If impaired hearing is service-connected in only one ear,
in order to determine the percentage evaluation from Table
VII, the non-service-connected ear will be assigned a Roman
Numeral designation for hearing impairment of I, subject to
the provisions of Sec. 3.383 of this chapter.
(g) When evaluating any claim for impaired hearing, refer to
Sec. 3.350 of this chapter to determine whether the veteran
may be entitled to special monthly compensation due either to
deafness, or to deafness in combination with other specified
disabilities.
(h) Numeric tables VI, VIA*, and VII. 38 C.F.R. § 4.85 (as
in effect June 10, 1999)
(a) When the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately.
(b) When the puretone threshold is 30 decibels or less at
1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral. That numeral will
then be elevated to the next higher Roman numeral. Each ear
will be evaluated separately. 38 C.F.R. § 4.86 (effective
June 10, 1999).
38 C.F.R. § 4.86a was removed effective June 10, 1999.
The Board notes that while the descriptive nomenclature for
Tables VI and VIa* were changed in June 1999, the table
charts themselves did not change.
38 C.F.R. § 3.350 Special monthly compensation ratings.
The rates of special monthly compensation stated in this
section are those provided under 38 U.S.C. 1114.
(a) Ratings under 38 U.S.C. 1114(k). Special monthly
compensation under 38 U.S.C. 1114(k) is payable for each
anatomical loss or loss of use of one hand, one foot, both
buttocks, one or more creative organs, blindness of one eye
having only light perception, deafness of both ears, having
absence of air and bone conduction, or complete organic
aphonia with constant inability to communicate by speech.
This special compensation is payable in addition to the basic
rate of compensation otherwise payable on the basis of degree
of disability, provided that the combined rate of
compensation does not exceed the monthly rate set forth in 38
U.S.C. 1114(l) when authorized in conjunction with any of the
provisions of 38 U.S.C. 1114 (a) through (j) or (s).
Factual Background
The veteran was provided audiometry evaluation in September
1994. At that time the speech reception threshold levels for
the right ear were 75 decibels at 500 and 1,000 hertz, 80
decibels at 2,000 hertz and no response above 2,000 hertz.
For the left ear the threshold levels were 25 decibels at 500
and 1,000 hertz, 30 decibels at 2,000 hertz, 60 decibels at
3,000 hertz, and 55 decibels at 4, 000 hertz. Speech
audiometry showed no response for right ear word recognition,
and 92 percent recognition for the left ear.
The veteran was again provided audiology evaluation in April
1995. The pure tone thresholds for the right ear were 105
decibels, or 105 decibels plus, at the tested frequencies of
500, 1,000, 2,000, 3,000, and 4,000 hertz. For the left ear
the threshold levels were 20 or 25 decibels at 500, 1,000
hertz, and 2,000 hertz, respectively. The levels were 65 and
60 decibels at 3,000 and 4,000 hertz, respectively. The
average threshold level for the right ear was 105 decibels
plus, and 43 decibels for the left ear. Speech recognition
score for the right ear was CNT (could not tell/test), and 88
percent for the left ear.
The veteran's hearing testimony in May 1996 essentially
addressed the tinnitus question.
Analysis
Ratings for hearing loss are essentially mechanical; the
audiology evaluation provides the test scores, those scores
are applied to the appropriate tables, and the table
designations determine the hearing compensation level for VA
purposes.
The test scores in April 1995 show level XI hearing
impairment in the right ear, and level II in the left ear.
When the hearing in the better hear is level II, and the
hearing in the poorer ear is level XI, a 10 percent rating is
assigned. The veteran is not deaf in both ears so no special
compensation is in order.
The Board notes that the portion of the VA Schedule for
Rating disabilities concerning disease of the ear including
impairment of auditory acuity, were amended, effective June
10, 1999. The changes made to the rating schedule were part
of an ongoing effort by the Department to complete a
comprehensive review and update of the entire rating schedule
on the basis of particular body systems. The intended
effects of this action are to ensure that the rating schedule
uses current medical terminology, reflects medical advances
that have occurred since the last review, and provides
unambiguous rating criteria.
When a change occurs in an applicable statute or regulation
after a claim has been filed but before a final decision has
been rendered, the U.S. Court of Appeals for Veterans Claims
(Court) has held that VA must apply the version of the
statute or regulation which is most favorable to the
claimant, unless Congress has expressly provided otherwise or
has authorized VA to provide otherwise and VA has done so.
Karnas v. Derwinski, 1 Vet. App. 308 (1991). Therefore, when
the pertinent rating criteria have been revised during the
pendency of an appeal to the Board involving a claim for an
increased rating for a service-connected disability, a
determination must be made by the Board as to whether a
particular amended regulation is more favorable to a claimant
than the previously existing regulation. Further, if the
amended regulation is found to be more favorable than the
prior regulation, then an additional determination is
required by the Board as to whether or not an appellant will
be prejudiced by the Board's action in applying the amended
regulation in the first instance.
In regard to the question of whether an amendment made to the
rating schedule contains liberalizing criteria, it was held
by the VA General Counsel in VA O.G.C. Prec. Op. No. 11-97
(Mar. 25, 1997), that questions as to whether an amendment is
more beneficial to a claimant than a previously existing
provision(s) must be resolved on a case-by-case basis. The
determination as to whether a particular amended regulation
is more favorable to a claimant than the previously existing
regulation may depend upon the facts of the particular case.
In this instance, the changes do not affect the rating for
the veteran's hearing. For the right ear, the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, does not result in a higher numeral. There is no
liberalizing criteria to be applied in this case, and neither
the old nor the new criteria is more favorable to the
veteran. The veteran's defective hearing rating is the same
under the old and new criteria.
Under VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992), and
Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), the Board
may consider regulations not considered by the AOJ if the
claimant will not be prejudiced by the Board's action in
applying those regulations in the first instance. In this
case the veteran is not prejudiced as the new criteria does
not affect the rating for his defective hearing.
ORDER
Service connection for tinnitus is grated, subject to the
laws and regulations governing the payment of monetary
benefits.
An increased evaluation for bilateral hearing loss is denied.
Richard B. Frank
Member, Board of Veterans' Appeals